John
Tehranian’s recent Utah Law Review Essay, Infringement
Nation, tells a riveting story about copyright law and the widening gap
between law and norms. Like Charles Marlow’s journey into the Congo
River, Tehranian has given us a transporting narrative of copyright’s
potential despotic application to the life of an “ordinary law professor” named
John. At the end of John’s journey down the copyright river, Tehranian asks us
to “imagine a world where every act currently deemed infringing under the law
were actually prosecuted.”
One
can almost hear Kurtz’ whispered cry, “The horror! The horror!”
Tehranian
argues that “on any given day, … even the most law-abiding American engages in
thousands of actions that likely constitute copyright infringement.” Tehranian makes
his case with an imaginative list of seeming benign “infringing” acts and
concludes that “if copyright holders were inclined to enforce their rights to
the maximum extent allowed by law, [John] would be indisputably liable
for a mind-boggling $4.544 billion in potential damages each year.” (emphasis
added)
Without
any disrespect to Tehranian, we take issue with his argument and almost all of
his analysis. To begin with, many of his examples clearly do not qualify as
copyright infringement, others are marginal cases at best.
A
review of the examples
Example
1. When replying and forwarding emails, John automatically reproduces the
original text of those emails.
In
the early ‘90s, there were innumerable Usenet, listserv, and early web discussions
in which people fretted about the copyright issues arising from replying to and
forwarding e-mails. Not so much
anymore. In many cases, quoting e-mails
would be easily defended as fair use—for example, when one quotes another’s
message for the purpose of criticism or comment. Other copies are impliedly licensed—messages
sent to listservs, replies to our messages that copy our original, and other
common, default uses of e-mail. Given
the prevalence of copying in the use of e-mail (billions of copies a day!), you
would need to include a very clear request over and above the standard law firm
footer that the e-mail not be copied to defeat the implied license.
Example
2. John distributes copies of three just-published articles analyzing a
Supreme Court decision handed down only hours ago to his Constitutional Law
class.
This
is a classic fair use scenario. Section 107 actually lists “teaching (including
multiple copies for classroom use) as an example of
fair use. Although the classroom photocopy guidelines do not strictly apply to
graduate education, John’s conduct is so clearly within the heart of the
guidelines (brevity, spontaneity, no cumulative effect) that his fair use
status seems secure. Unlike the university course-material cases, John’s use
has no arguable market effect, it does not a substitute for the purchase of
books, publisher reprints or periodicals.
Example
3. John doodles a copy of a famous Frank Gehry sketch to pass the time away
in a faculty meeting.
This
example is a little more interesting. Assuming that John never displays or
publishes the doodle he would be protected by fair use. There is, after all, no
adverse market effect, no substitution for the original work or licensed
derivatives thereof, and his purpose seems benign. If John later wanted to
publish the doodle we might have to look at the extent to which his reworking
of the original was transformative, but that takes us outside the bounds of the
example.
Example
4. John reads a poem to his Law and Literature class.
This performance is clearly exempted under section
110(1) of the Copyright Act unless John teaches at a for-profit law
school. Furthermore, even without section 110(1) this performance likely be
fair use for reasons similar to those described in relation to Example 2.
Example
5. John copies five photos taken by a friend.
This
act of copying would seem to be impliedly licensed in this context. If John’s friend were a wedding photographer
and the photos were proofs, it would be a different story, but in most other
contexts people correctly understand that they have implicit permission to copy
a friend’s photos. In any event, John
does not have a problem unless his friend chooses to enforce his copyright, in
which case John needs to get new friends.
Example
6. John reveals his Captain Caveman tattoo by taking his shirt off to go
swimming at a public pool.
This
is Tehranian’s best example of the potential absurdity of copyright. But even here
the analysis is not as straightforward as depicted in Infringement Nation. At
first glance John appears to be displaying the copyrighted work publicly thus
impinging on the copyright owner’s 106(5) rights. However, one could argue
that because “to ‘display’ a work means
to show a copy of it,” and the word “show” should be understood to require
volitional conduct, the incidental exposure of the tattoo is not technically a
display. There are also 1st Amendment and fair use arguments one
could raise. The idea that a court would order the removal of the tattoo is of
course silly.
Example
7. (a) John sings happy birthday with his friends in a public restaurant;
(b) John records the singing of happy birthday on a cellphone camera; and (c) John
records an image of a copyrighted painting (Wives with Knives) that
happens to be in the background of the restaurant.
Trivial
non-commercial copying is not infringement. See, Davis v. Gap, Inc (2d Cir.
2001). This case explains the de minimis doctrine using the well-worn
Happy Birthday hypothetical as a classic example of its application. Judge Leval’s comments in Davis are worth quoting at length
because they go to the heart of many of the examples used in Infringement
Nation.
“We
do not hesitate to make a photocopy of a letter from a friend to show to
another friend, or of a favorite cartoon to post on the refrigerator. Parents
in Central Park photograph their children perched on Jose de Creeft's Alice in Wonderland
sculpture. … Waiters at a restaurant sing "Happy Birthday" at a
patron's table. When we do such things, it is not that we are breaking the
law but unlikely to be sued given the high cost of litigation. Because
of the de minimis doctrine, in trivial instances of copying, we are in fact not
breaking the law. If a copyright owner were to sue the makers of trivial
copies, judgment would be for the defendants. The case would be dismissed
because trivial copying is not an infringement.”
Tehranian
cites Ringgold v. Black Entertainment Television (2d Cir. 1997) for the
proposition that the incidental background recording of a copyrighted painting
constitutes infringement. Even assuming Ringgold was correctly decided, it
does not control the present scenario because Ringgold was (a) about a
commercial broadcast and (b) about the unauthorized use of a poster as part of
the set decoration on a television sitcom where presumably someone under the
control of the TV show chose to put the poster on the set in the first place.
Example
9. John buys a copy of a Found, a magazine that collects and
catalogues curious notes, drawings, and other items of interest that readers
find lying in city streets, public transportation, and other random places.
Citing
the U.S. Supreme Court’s Grokster decision,
Tehranian contends that “By subscribing to Found, John is quite arguably
encouraging and materially contributing to Found’s acts of infringements
by making them profitable.”
It
would be a dramatic (and unwelcome) innovation for a court to apply Grokster’s inducement doctrine to an
ordinary purchaser of a mass market product. An investor in Found might
show the requisite “purpose to cause and profit from third-party acts of
copyright infringement.” As the Court
noted in Grokster, however, “[i]f
liability for inducing infringement is ultimately found, it will not be on the
basis of presuming or imputing fault, but from inferring a patently illegal
objective from statements and actions showing what that objective was.” Buying a magazine would most likely be
evidence of interest in reading a magazine, rather than a patently illegal
objective.
Example
10. John sings along with his car stereo, possibly with the windows down.
This
is probably not even a public performance. John’s car is not “a place open to
the public,” nor, assuming his car is moving, are there “a substantial number
of persons” “gathered” outside John’s car within earshot of his no doubt
melodious voice. Even if it is, then see the comments under example 7, above. (Note
also that we have a clear statement from the Supreme Court that “no license is
required by the Copyright Act to sing a copyrighted lyric in the shower” Twentieth Century Music Corp. v. Aiken, 422 151, 155
(1975).)
The
Broader Issue
The
insight Tehranian draws from his examples is that “Indeed, one must either
irrationally conclude that John is a criminal infringer—a veritable grand
larcenist—or blithely surmise that copyright law must not mean what it appears
to say. Something is clearly amiss.”
We
understand that the extremity of the conclusions reached in Infringement
Nation may have been largely for rhetorical effect. Furthermore, we
certainly would not dispute that there is a substantial disjunction between
copyright law and the copying norms of American society. However, as our dissection
of Tehranian’s examples shows, the law-norms gap is not as large as asserted. Fair use closes a considerable part of the
law-norms gap. Moreover, absent an
explicit objection from the copyright owner, implied licensing fills yet more
of the gap. Admittedly, even after fair
use and implied licensing do their jobs, there is still some gap between law
and norms. But we question whether it is
helpful to exaggerate its size.
We
also question whether the law-norms gap is as consequential as
Tehranian describes. Tehranian implies that copyright is a form of
direct regulation, like environmental regulations or prohibitions on
drug
use. It is sometimes useful to think of
copyright as a form of trade regulation as argued by scholars including
Shubha Ghosh and Sara Stadler.
Copyright also admittedly looks a lot like
regulation when it curtails or restricts speech. In the contexts
Tehranian describes, however,
it most often operates as a property right. Property rights don’t
inevitably affect or alter people’s behavior. If the holder of the
right is uninterested in
exercising it and the potential infringer never gives it much or any
thought,
it is hard to see what harm is done.
The
real problem with copyright law today is not so much the tyranny of the law
as eventually applied, but rather the tyranny of uncertainty as to how the law
will be applied. This uncertainty is the product of factors including, the
opaque structure of the Copyright Act, the complicated and fact specific nature
of the fair use doctrine and defenses such as implied licensing. It is easy and
rhetorically expedient to construct a dystopian scenario of copyright gone
wild, but this kind of exaggeration does little to address public confusion
about the law and only emboldens copyright maximalists by lending credence to
their most grandiose claims.
What
kind of copyright debate do we want to have? The “Orange Alert” strategy
employed by too many copyright commentators simply produces a clash between
irreconcilable extremes: “information wants to be free” versus “sole and
despotic dominion.”
We
continue to hope for something more.
By
Matthew Sag & Mark Schultz (first author selected by a coin-toss)
